Rutland & B. R. Co. v. Crocker

21 F. Cas. 97, 4 Blatchf. 179

• Court: U.S. Circuit Court for the District of Vermont
• Decided: May 15, 1858
• Status: Published

Opinion

NELSON, Circuit Justice.

This case ought to have been disposed of at a much earlier date. It was in the hands of the late lamented Judge Prentiss, for examination and decision, at the time of his death, and circumstances,- over which I had no control, have since prevented me from giving to it that consideration which its importance required.

After the fullest consideration, I am satisfied that the court erred in excluding the evidence offered by the defendant. The terms of the clause annexed to the subscription import some previous agreement or understanding between the.parties, in respect to the engines. The money was to be paid on the delivery of the last engine of twelve from the works of which the defendant was the head. There must have been an agreement for the delivery of twelve engines, and it is fair to conclude that they were to have been delivered at some specified time or times, and, especially, that some time was specified, within which the last was to have been delivered, as the payment of the money depended upon the delivery. If there was no specified time, either in fact, or in contemplation of law, the subscription might have been rendered nugatory at the election of the defendant, and he could have postponed the delivery indefinitely. Again, as the event, to wit, the delivery of the last of the twelve engines, upon which the money was to be paid, depended upon the act of the defendant himself, unless there was some agreemént binding him, or his company. -to deliver the engines, not only the last one of the twelve, but each and all of them, the subscription would have been a contract wholly upon one side, as no obligation or duty would have existed on the part of the defendant, to deliver the engines, and. therefore, the time of payment might never have happened. ' .

In order to give the subscription any binding operation or effect, against the defendant, it seems to me, that the reference to the twelve engines and the delivery of them must be construed as relating to some contract previously entered into between the parties, providing for the manufacture or procurement of the same, and which, when produced or proved, would explain the intent and meaning of the words. The court 'was misled, at the moment, on the trial, from a consideration of the difficulty of permitting parol evidence to connect the two instruments, and entertained the view that the rule should be confined to papers explanatory of the transaction, and which, on the face of them, referred to one another. But the rule, thus applied, is manifestly too narrow. The paper is admissible and rélevant. if, in point of fact, it is a part of the same transaction. Cornell v. Todd, 2 Denio, 130, 133. This principle is conclusive against the ruling upon the point in question. The evidence offered and rejected was full, not only to make out the contract in respect to the engines, but, also, to show that it constituted a material element in the contract of subscription. The two contracts were of even date, and were made between substantially the same parties, and specified the same number of engines. The price, and the time and terms of delivery of the engines, were agreed upon, and the contract was approved by the directors of the plaintiffs, three days afterwards. I ought to add, that this interpretation seems to be the one given to the clause in the subscription, by the pleader, in the declaration. ! ' : • . ' ! I

There are several other veiy important questions presented in the case, and which were argued by the counsel, but. as the case must go down for a new trial, I shall leave them for a more full consideration and further argument, as the facts may appear on the second trial.

A new trial is granted, with costs to abide the event.